Zammiello v. Colvin

Filing 20

ORDER: It is ORDERED that Plaintiff's motion for judgment on the pleadings is GRANTED. It is ORDERED that the Commissioner's determination that plaintiff was not disabled at the relevant times, and thus not entitled to benefits under the So cial Security Act, is VACATED. It is ORDERED that the matter is hereby REMANDED to the Commissioner, without a directed finding of disability, for further proceedings consistent with this determination. It is further ORDERED that the Clerk is respectfully directed to enter judgment, based upon determination, remanding this matter to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) and closing this case. Signed by Magistrate Judge David E. Peebles on 11/24/2015. (mc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF NEW YORK

JENNIFER I. ZAMMIELLO,
Plaintiff,
v.

Civil Action No.
6:14-CV-1497 (DEP)

CAROLYN W. COLVIN, Acting Commissioner
of Social Security,
Defendant.

APPEARANCES:

OF COUNSEL:

FOR PLAINTIFF
PETER M. HOBAICA, LLC
2045 Genesee Street
Utica, NY 13501

B. BROOKS BENSON, ESQ.

FOR DEFENDANT
HON. RICHARD S. HARTUNIAN
United States Attorney for the
Northern District of New York
P.O. Box 7198
100 S. Clinton Street
Syracuse, NY 13261-7198
DAVID E. PEEBLES
U.S. MAGISTRATE JUDGE

FERGUS J. KAISER, ESQ.
Special Assistant U.S. Attorney

ORDER
Currently pending before the court in this action, in which plaintiff
seeks judicial review of an adverse administrative determination by the
Commissioner, pursuant to 42 U.S.C. ' 405(g), are cross-motions for
judgment on the pleadings. 1 Oral argument was conducted in connection
with those motions on November 18, 2015, during a telephone conference
held on the record. At the close of argument I issued a bench decision in
which, after applying the requisite deferential review standard, I found that
the Commissioner=s determination did not result from the application of
proper legal principles and is not supported by substantial evidence,
providing further detail regarding my reasoning and addressing the specific
issues raised by the plaintiff in this appeal.
After due deliberation, and based upon the court=s oral bench
decision, a transcript of which is attached and incorporated herein by
reference, it is hereby

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This matter, which is before me on consent of the parties pursuant to 28
U.S.C. ' 636(c), has been treated in accordance with the procedures set forth in General
Order No. 18 (formerly, General Order No. 43) which was issued by the Hon. Ralph W.
Smith, Jr., Chief United States Magistrate Judge, on January 28, 1998, and
subsequently amended and reissued by Chief District Judge Frederick J. Scullin, Jr., on
September 12, 2003. Under that General Order an action such as this is considered
procedurally, once issue has been joined, as if cross-motions for judgment on the
pleadings had been filed pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.

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ORDERED, as follows:
1)

Plaintiff=s motion for judgment on the pleadings is GRANTED.

2)

The Commissioner=s determination that plaintiff was not

disabled at the relevant times, and thus is not entitled to benefits under the
Social Security Act, is VACATED.
3)

The matter is hereby REMANDED to the Commissioner, without

a directed finding of disability, for further proceedings consistent with this
determination.
4)

The clerk is respectfully directed to enter judgment, based upon

this determination, remanding the matter to the Commissioner pursuant to
sentence four of 42 U.S.C. ' 405(g) and closing this case.

Dated:

November 24, 2015
Syracuse, NY

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
--------------------------------------------x
JENNIFER I. ZAMMIELLO,
Plaintiff,
vs.

6:14-CV-1497

CAROLYN W. COLVIN, Acting Commissioner
of Social Security,
Defendant.
--------------------------------------------x
Transcript of a Decision held during a
Telephone Conference on November 18, 2015, at the
James Hanley Federal Building, 100 South Clinton
Street, Syracuse, New York, the HONORABLE DAVID E.
PEEBLES, United States Magistrate Judge, Presiding.
A P P E A R A N C E S
(By Telephone)
For Plaintiff:

OFFICE OF PETER M. HOBAICA, LLC
Attorneys at Law
2045 Genesee Street
Utica, New York 13501
BY: B. BROOKS BENSON, ESQ.

For Defendant:

SOCIAL SECURITY ADMINISTRATION
Office of Regional General Counsel
Region II
26 Federal Plaza - Room 3904
New York, New York 10278
BY: FERGUS J. KAISER, ESQ.

Jodi L. Hibbard, RPR, CSR, CRR
Official United States Court Reporter
100 South Clinton Street
Syracuse, New York 13261-7367
[phone]

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(The following is an excerpt from the

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proceedings held on 11/18/2015.)

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(In Chambers, Counsel present by telephone.)

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THE COURT:

All right.

I have before me a request

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for judicial review of the Commissioner's determination under

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42 United States Code Section 405(g).

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The background of the case is as follows:

The

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plaintiff was born in March of 1974, she's currently 41 years

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old, if my math serves me correctly.

She lives in Paris,

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New York with her husband and three young daughters who were

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12, 6, and 3 at the time of the hearing in this matter.

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has an associate's degree in culinary arts.

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she has had various restaurant, bakery, and catering jobs

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including working in a pizzeria between 2004 and 2011, owning

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a bakery from March of 2011 until August of 2011, and working

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part time for her aunt, who owns Florentine Pastry Shop in

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Utica, between September 2011 and September 2012.

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She

She has various,

She was diagnosed in September of 2011 as suffering

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from multiple sclerosis, that's at page 322.

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treating since August 5th, 2011 with Dr. Lev Goldiner, she

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has been on -- he is with the Slocum Dickson Medical Group.

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She's been on Rebif, B12, vitamin D, and was on Ritalin.

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She testified to flare-ups approximately every

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three months.

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steroids trying to recover from a flare-up.

She has been

In May of 2012, she spent five days on

JODI L. HIBBARD, RPR, CRR, CSR
[phone]

In August 2012,

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according to her, she had a flare-up that lasted between 14

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and 18 days.

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was her worst flare-up lasting approximately two months.

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Some of the symptoms she testified to including -- include

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loss of use and pain in right hand, right leg, fatigue.

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sleeps between three and four hours during the day, some days

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spends all day in bed.

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way.

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arm, as I said, and she has tremors in her right hand.

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In December of 2012 through January 24, 2012

She

She is right-hand dominant, by the

She has pain and numbness and weakness in the right

She did undergo right shoulder surgery by Dr. John

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Sullivan in September 2012.

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issue or related to her MS.

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That does not seem to be an

Procedurally, she applied for Disability Insurance

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benefits in January 2012, alleging an onset date of

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September 21, 2011.

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2012 -- 13, I'm sorry, by Hortensia Haaversen,

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H-a-a-v-e-r-s-e-n.

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May 20, 2013 finding that the plaintiff was not disabled at

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the relevant times and therefore ineligible for benefits.

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A hearing was conducted in April 25,

Judge Haaversen issued a decision on

The Social Security Appeals Council, after being

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presented with additional submissions which included 12F, an

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exhibit, a letter from the treating physician Dr. Goldiner,

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denied review of the determination in the standard format

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that does not give specific reasonings other than general

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statements.

JODI L. HIBBARD, RPR, CRR, CSR
[phone]

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The administrative law judge's decision, I have to

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say, was very comprehensive, and in many respects thorough.

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The administrative law judge went through the standard

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five-step disability protocol, concluded that the MS was

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indeed severe, but that she did not meet or equal medically

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the listed -- listing Section 11.09 for MS which would have,

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if she met that listing, she would be presumptively disabled

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under the regulations.

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the ALJ concluded that the plaintiff has the residual

After surveying the medical evidence,

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functional capacity to perform light work with some

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exceptions including, notably, that the claimant can

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occasionally use the dominant right hand but has no other

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limitations with the left hand.

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expressed with respect to fingering and fine motor activity.

There is no limitations

The ALJ concluded that the plaintiff's testimony

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concerning her limitations are not entirely credible.

He --

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she rejected the opinions of Dr. Gould who provided a medical

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assessment based on a one-time examination of the plaintiff,

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literally the day before the -- conducted the day before the

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hearing.

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was entitled to weight based on her RFC finding.

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less weight on the findings of Dr. Dennis Noia who

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psychologically examined the plaintiff, great weight to the

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opinions of Dr. Puri who examined the plaintiff in April of

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2012, and we've discussed his findings, minimal weight to

She also concluded that the state agency consultant

JODI L. HIBBARD, RPR, CRR, CSR
[phone]

She placed

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Dr. Gould's opinion, concluded that plaintiff is unable to

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perform any of her past relevant work, but after consulting

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with both the grids as a framework and the testimony of a

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vocational expert concluded that she is capable of performing

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as an usher and as a counter clerk and that there are

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sufficient number of jobs available in the national economy

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in those positions and therefore the plaintiff is not

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disabled.

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The first argument that was raised is one that I

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think is extremely interesting, I looked at extremely

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carefully.

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provided by Dr. Goldiner, the treating source, in his letter

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dated September 16, 2013, supplied to the Social Security

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Appeals Council, at page 661 and 662 of the record.

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only endorses the findings of Dr. Gould that were rejected in

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large part by the administrative law judge, but provides

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specific reference to portions of the record, his treating

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records to support that.

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the plaintiff meets or medically equals the requirements of

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listing 11.09(A).

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from this district, and from the Western District of

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New York, that when new and material evidence, and I find

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this to be new and material evidence, is submitted to the

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Social Security Appeals Council, and it consists of opinions

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from a treating source, the Appeals Council has the

The argument is that there were direct opinions

It not

He also reiterates his opinion that

The -- the case law is clear, at least

JODI L. HIBBARD, RPR, CRR, CSR
[phone]

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obligation to make the same analysis that an administrative

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law judge must, under the regulations and case law, and must

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state specifically why the opinions are being rejected if

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they are being rejected.
The cases that we've cited are in the briefs, Judge

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v. Commissioner of Social Security from the Northern

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District, Beck v. Colvin from the Western District of

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New York, Schramm v. Colvin from the Western District of

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New York, Judge Skretny, and Rosas-Nazario that I cited

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earlier, and lastly Flagg, uniformly impose that requirement.

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The requirement was clearly not met in this case, and that

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alone provides a basis for reversal.
If I were looking at this without that flaw on the

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merits, I would apply the deferential standard and my role

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would be limited to determining whether the result is

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supported by substantial evidence.

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that arguments can be made on both sides and that it is

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ultimately the task of the court not to decide how the case

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should have been decided by the administrative law judge, but

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whether the ALJ's decision is supported by substantial

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evidence.

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in the record and that the RFC finding is not supported by

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substantial evidence.

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analysis was proper and complete and supported by substantial

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evidence.

I agree with Mr. Kaiser,

I also think, however, that the -- there are flaws

I don't think that the credibility

Dr. Puri's reference shows that there is decreased

JODI L. HIBBARD, RPR, CRR, CSR
[phone]

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strength in right extremities, there are other reports in the

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record that show limitations in both the right upper and

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right lower extremities.

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I think there are a host of problems with the ALJ's

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decision but the primary one of course is the Social Security

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Appeals Council's decision.

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to conclude that the plaintiff is disabled.

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strong evidence, a good argument to be made that she is based

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on Dr. Goldiner's opinions concerning the listings and

I do not find compelling basis
I think there's

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concerning her limitations, but I'm not able to say

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definitively that she is disabled and that the matter should

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be remanded with a directed finding.

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judgment on the pleadings to the plaintiff but without a

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directed finding of disability and remand the matter for

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further consideration by the Commissioner.

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So I will grant

I've appreciated the excellent arguments of both

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parties, this presented some very interesting legal and

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factual issues, and look forward to working with you again.

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Thank you.

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MR. BENSON:

Thank you very much, your Honor.

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MR. KAISER:

Thank you.

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(Proceedings Adjourned, 4:41 p.m.)

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JODI L. HIBBARD, RPR, CRR, CSR
[phone]

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CERTIFICATE OF OFFICIAL REPORTER

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I, JODI L. HIBBARD, RPR, CRR, CSR, Federal

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Official Realtime Court Reporter, in and for the

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United States District Court for the Northern

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District of New York, DO HEREBY CERTIFY that

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pursuant to Section 753, Title 28, United States

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Code, that the foregoing is a true and correct

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transcript of the stenographically reported

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proceedings held in the above-entitled matter and

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that the transcript page format is in conformance

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with the regulations of the Judicial Conference of

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the United States.

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Dated this 19th day of November, 2015.

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/S/ JODI L. HIBBARD

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JODI L. HIBBARD, RPR, CRR, CSR
Official U.S. Court Reporter

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JODI L. HIBBARD, RPR, CRR, CSR
[phone]

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JODI L. HIBBARD, RPR, CRR, CSR
[phone]